Reform of the French Intelligence Oversight System

November 30, 2018

“French intelligence remains a very secretive world from the public view, and the little presence it occupies in the press or public debate is more often than not one of scandal, abuse or failure. Nevertheless, a wave of reforms is attempting to perfect this system, and in some cases, to create effective intelligence oversight mechanisms.”

French intelligence remains a very secretive world from the public view, and the little presence it occupies in the press or public debate is more often than not one of scandal, abuse or failure. In 2008, the government initiated a reform process of the intelligence organisation, and continued in 2015, following the numerous terrorist attacks on the national territory. The result of this long process of reshaping the intelligence community has included attempts at perfecting, and in some cases creating, oversight mechanisms. [1]

These reforms have been the subject of public and parliamentary debates for the past decade, as many politicians, scholars and journalists pointed out the lack of supervision and the relative freedom intelligence agencies enjoyed in performing their activities. Today, the French oversight system comprises a specific institution for each type of control. This diversified/plural system was completed with the creation of a new institution, the Commission Nationale de Contrôle des Techniques de Renseignement, CNCTR (national commission for the control of intelligence techniques) in 2015.

The CNCTR is an independent administrative body in charge of controlling the legality and proportionality of the techniques implemented by intelligence agencies. Its creation was intended to counterbalance the use of modern data collection techniques introduced by the 2015 law, which many critics deemed too intrusive and disrespectful of civil liberties. [2]

Intelligence agencies are required to make requests to be examined by the CNCTR before putting in place a new surveillance technique against a target. The inspection includes the respect of procedures, the technique being justified by the threat and the proportionality of the invasion of privacy. The CNCTR then makes a non-binding recommendation to the Prime Minister, who is in charge of the approval.

Reviews can also be carried out after implementation of the technique, in particular, to ensure that it is not continued without justified motives. This can be done as well upon request of individuals who feel they are the victim of illegal techniques. If the control proves that the use of the technique is unlawful, the Commission can recommend that it be discontinued and the information destroyed. If the recommendation is not followed, it can refer the case to the Conseil d’Etat, who has the power to make these recommendations compulsory.

According to the first report it produced after a year of existence, the Commission can deliver a recommendation within a few hours, or even minutes in case of emergency. From October 2015 to October 2016, it replied to 66 584 requests, of which 1 263 resulted in negative recommendations. All these were followed by the Prime Minister and the techniques were not implemented.

Despite what seem like promising results for a young institution, the effectiveness of the CNTCR can be questioned and certainly leaves room for improvement.

Most of the flaws stem from the access the CNCTR has to the information it needs. The data collected through other techniques than phone tapping is not centralised, forcing the agency’s investigators to travel to local branches across the national territory in order to carry out inspections [3]. With no direct access to the intelligence gathered through modern techniques, the CNTCR is limited to the information intelligence agencies are willing to provide.

With only fifteen agents, the CNCTR is not equipped to undertake such a time-consuming quest. In fact, it might not be sufficiently equipped to process the tremendous amount of requests (66 584 in a year) given all the information it is supposed to look upon each time. When its first annual report declares that some recommendations were delivered within minutes, one might question whether all the facts were properly taken into consideration before it was issued and the quality of such recommendations. [4]

The creation of the CNCTR in 2015 to oversee the usage of intelligence techniques has attempted to bring France up to high democratic standards in terms of intelligence oversight. However, the commission’s limited means hinder its ability to perform fully its duties. And let’s not forget that its recommendations are not binding! These considerations require particular attention now that France has entered the age of mass data collection, with the first IMSI-catchers set up in November 2017 and no additional workforce for the CNCTR in sight. [5] There is still some way to go before fully democratic intelligence oversight is achieved.